M. Shiva Kumar vs A. Bal Reddy - 2006 Supreme(AP) 1148

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2006 Supreme(AP) 1148

2006(3) L.S. 348 (D.B.)
IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH : : AT HYDERABAD
Present:
The Hon’ble Mr. Justice
T.Ch. Surya Rao &
The Hon’ble Mr. Justice
G. Chandraiah
M.Shiva Kumar &
Ors., ..Petitioners
Vs.
A.Bal Reddy &
Ors., ..Respondents
W.P.No.9077/03 Date:28-9-2006
Mr.B.Mahender Reddy, Advocate for the Petitioner.
Mr.P. Venogopal, Advocate for the Respondent Nos.1 to 3.
Mr.A. Narasimha Rao, Advocate for the Respondent No.4.
Mr.A. Pulla Reddy, Advocate for the Respondent Nos.5 to 15.

Headnote:A.P. LAND GRABBING (PROHI-BITION) ACT, Secs.2(d) (e) & 8(1) - CONSTITUTION OF INDIA, Art.226 - LIMITATION ACT, Art.65 - Petitioners filed Application in Special Court to declare respondents as land grabbers in respect of applicant schedule land contending that pursuant to decree dated 13-4-1967 petitioners’ father was put in possession on 11-2-1968 and that respondents are in illegal possession and their action would tantamount to land grabbing - Respondents contend that their father purchased property from petitioners’ father on 5-12-1952 and eversince they are in possession till date of execution and thereafter their possession was continuous, open to knowledge of petitioners’ father and adverse to his interest and thus perfected their title to land having been in continuous possession and right of petitioners’ father extinguished and claim of applicants barred by limitation - Special Court dismissed Application holding that respondents are owners of land having perfected title by adverse possession and they are not land grabbers within meaning of Sec.2 (d) (e) of Act.
        Contention that plea taken by respondents claiming derivative title as well as prescriptive title are mutually destructive and therefore they shall elect one among those two, since respondents cannot be permitted to approbate or reprobate and that there is also no oral evidence in support of plea of adverse possession - In this case, suit filed by sister of R.1 to R.3 for partition against R.1 to R.3 and petitioners’ father dismissed on 30-8-1980 which is clear assertion of title over disputed land qua late petitioners’ father, which obviously becomes an overt act on their part in clearly denying title of petitioner’s father and date on which suit dismissed would become starting point to reckon period of limitation.
        ADVERSE POSSESSION - Plea of adverse possession is a mixed question of law and fact - Mere possession of land, for however length of time it may be unaccompanied by adverse possession will not ripe into a prescriptive title - Possession shall be adequate, in continuity, in publicity and in extent - Person holding land must have requisite animus to possess same hostile to real owner, besides having actual possession - In this case, although respondents’ father was continuing to be in possession even after 11-2-1968 obviously he had no requsite animus to possess land adverse to its real owner viz., petitioners’ father.
        INCONSISTENT PLEAS - It is open to parties to take up inconsistent pleas but in alternative - In this case plea of derivative title got extinguished moment decree executed and possession delivered on 11-2-1968 although symbolical - Case of respondents that they set up derivative title till 11-2-1968 and set up prescriptive title henceforth from 11-2-1968 and as such it is not case of taking both pleas simultaneously - It is plea of petitioners that their father was prevented despite delivery from entering into land and therefore from 11-2-68 onwards respondents continued to be in possession not in capacity of owners thereof, since they lost their title when an ex parte decree was passed against them declaring title of petitioners’ father and possession delivered pursuant thereto - Suit filed by respondents’ sister dismissed on 30-8-1988 and Application filed by petitioners in 1997 is barred by limitation - Petitioners slept over matter for a long period which has effect of extinguishing their right over disputed land and it cannot be now sought to be circumvented by filing Application under Land Grabbing Act - Order of Special Court - Justified - Writ petition, dismissed.

O R D E R

(per the Hon’ble Mr.Justice

T.Ch. Surya Rao)

The Writ Petitioners seek an appropriate writ or order or direction in the nature of a Writ of Mandamus/Certiorari to quash the judgment dated 29-10-2002 passed by the learned Special Court in L.G.C.No.9 of 1997.

2. The Writ Petitioners along with their mother, Smt.M.Savithri, are the applicants in L.G.C.No.9 of 1997 before the Special Court under A.P. Land Grabbing (Prohibition) Act (for short, the Act’) Hyderabad. The respondents herein are the respondents therein. The application was filed to declare the respondents as land grabbers qua the land measuring Acs.5.16 guntas covered by Sy.No.10 and Acs.1.35 guntas covered by Sy.No.12 of Kompally village, Quthubullapur Mandal, R.R.District (for short ‘the disputed land’).

3. Briefly stated, their case was that late M.Shankaraiah, the father of the applicants and the husband of Savithramma, was the owner of the disputed land. He filed a suit in O.S.No.30 of 1966 on the file of the Munsif Magistrate East and North, Hyderabad, against one, Narsareddy and Laxmareddy for recovery of possession of the said land which had been in their illegal occupation. The suit was decreed ex parte against them on 13-04-1967. Late Shankaraiah filed E.P.No.3 of 1968 seeking delivery of the land in execution of the decree passed in the suit. Pursuant to the direction of the executing Court, late Shankaraiah was put in possession of the disputed land on 11-02-1968. Despite the delivery, Shankaraiah was prevented by the judgment debtors from cultivating the said land. Again in the year 1982 Shankaraiah filed another E.P.No.4 of 1982 for delivery. E.P. No.4 of 1982 was dismissed on 05-05-1983 by the Principal District Munsif, East and North on the ground, that Court had no territorial jurisdiction over the subject matter of dispute. The decree holder filed again E.P.No.14 of 1985 before the District Munsif, Medchal, seeking delivery of possession of the disputed land. That E.P. was also dismissed on 03-08-1990 on the premise that no fresh execution petition was maintainable since the decree in O.S.No.30 of 1966 had already been executed on 11-02-1968 in E.P.No.3 of 1968. While so Shankaraiah died on 11-09-1992 leaving behind him his wife Savithramma and the writ petitioners, his sons. On the ground that the judgment debtors continued to be in illegal occupation of the disputed land without any legal entitlement and their action would tantamount to land grabbing, the legal heirs of Shankaraiah filed the application under Section 8 (1) of the Act before the Special Court.

4. It is the case of the respondents that Linga Reddy, their late father, purchased the disputed land from late M.Shankaraiah on 05-12-1952 for a consideration of Rs.725/- and obtained possession thereof. Late Shankaraiah filed an affidavit before the Deputy Collector, East Division, on 24-12-1953 to the effect that he sold away the disputed land to Linga Reddy. The sale in favour of Linga Reddy was confirmed by the revenue authorities and a patta was granted and his name was also mutated in the revenue records. Linga Reddy died on 14-01-1958. The respondents approached the revenue authorities for mutation and a patta was granted in their favour. A well was dug in the disputed land besides two bore wells for developing the land which was barren at the time of its purchase. Further, they constructed a small house on the disputed land. The respondents brought the lands into cultivation and had been in continuous possession of the said land. In the year 1977 when the Government issued a notification for acquiring a portion of the disputed land, the first respondent filed W.P.No.1142 of 1980 and got the said notification quashed.

5. It was further their case that late Shankaraiah filed a false suit and obtained an ex parte decree against them behind their back without any notice to them. Although in E.P.No.3 of 1968 the land was said to be delivered to late Shankaraiah under a panchanama on

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2006 Supreme(AP) 1148

Cases Referred (1)